With the development of the times, sex reassignment surgery has begun to enter people's lives, so after the sex change his/her medical treatment, marriage and so on how to deal with the law? Below I have organized the feasibility of gender reassignment surgery and related legal essays for you, I hope it will help you!
Abstract:
For transsexuals, the ability to change gender in pursuit of a desired life is a blessing, but at the same time it is a social phenomenon that raises a series of problems. The medical regulations governing sex reassignment surgery need to be further standardized, and the law should not be allowed to stick to traditional concepts without reform, at least in terms of the interpretation of the law. The development of sex-reassignment surgery also requires that the law must regulate and standardize sex-reassignment behavior; the two are mutually reinforcing. The law must face the reality, timely and reasonable reflection of the social movement, and with the corresponding legal norms can be more scientific to solve the new problems such as sex reassignment surgery, so that people can exercise the right to health and the right to the body according to law.
Keywords:
Transgender surgery, transsexualism, medical regulation, legal disputes
With the improvement of medical technology in our country, the word "transgender surgery", which we have never been exposed to before, began to appear frequently in all kinds of media reports, with the accompanying "transgender surgery", "transgender surgery", "transgender surgery", and "transgender surgery", "transgender surgery", and "transgender surgery". The term "transgender" has also become a real-life role in real life from a purely conceptual or imaginary thing. As a special group, it has come into people's view and become more and more familiar. Of course, as an independent individual, natural persons can choose their own behavior, which provides the possibility of sex reassignment surgery, but at the same time, certain issues related to the surgery, such as legal and ethical issues should be given attention to, the state should fill the legal gaps as soon as possible, to establish and improve the corresponding rules and regulations.
An ideological and legal basis for the feasibility of sex reassignment surgery
In ancient Greece, the idealist philosophers Plato and Aristotle first noted that human beings have the freedom of choice of their behavior, that is, to affirm that people have freedom of will. The Declaration of Human Rights, influenced by French Enlightenment thought, also explicitly states that human beings are and always have been born free and equal. In law, the Constitution grants every human being freedom, which is expressed in the right to act or refrain from acting within the limits of the law. Any kind of behavior should be permitted by the law as long as it does not harm the legitimate rights and interests of others, and as long as it does not impede the freedom of others, which is the best interpretation of freedom. With the progress of society, people's pursuit of their own spiritual value is getting higher and higher, and the suppression, distress, helplessness and pain brought about by the distortion of the traditional perception of gender has reached its maximum. The new concept of freedom brought about by progress has completely shattered the layers of traditional values that were stubbornly blocked.
The feasibility of transgenderism can be elucidated through the physical rights of natural persons. In terms of personal rights, gender only has the significance of identity has not been given the significance of personality, but from the civil jurisprudence, gender for the natural person, not only in the field of identity in the field of personality has its legal effect. This legal significance of gender for the personality of a natural person is a natural right before it is recognized by law, but after it is recognized by law, it is a legal right, i.e. the right to gender. Once elevated to a legal right, the right to gender constitutes a specific personality right of a natural person, together with the right to life, the right to a body, the right to a name, the right to a portrait and other rights***. In this legal environment, people have the right to change their gender, just like changing their name, the sex reassignment surgery that occurs in society is a manifestation of natural rights from the perspective of natural rights is human nature, as long as there is no explicit prohibitive legal provisions that are regarded as the person concerned has the right to exercise this right. From the perspective of legal rights, it is a manifestation of human beings exercising their legal rights. From the point of view of the legal order of personality interests, body, health belongs to the material elements of personality, name, gender, portrait belongs to the spiritual elements of personality, the natural person to the reasonable disposal of the material elements of personality in exchange for the spiritual elements of the personality of the acquisition and maintenance of the natural needs of the spiritual interests of personality, the law should be respected.
Transsexualism and Sex Reassignment Surgery
Dr. Harry Benjamin, a renowned psychiatrist, sexologist, and endocrinologist, had an insightful statement about sex and gender: "I would like to remind you of one basic fact: the difference between sex and gender. Sex is what you see and gender is what you feel. Harmonization between the two is essential to human well-being." Sex here refers to anatomical sex; gender is psychological sex or gender self-identification, which is a person's self-perception of whether they are male or female. For most people, the two harmonize. But for a very small number of people, the opposite is true. A biologically male or female individual who, although he or she clearly knows his or her biological sex, psychologically feels that he or she is the opposite sex and desires to change his or her biological sex. 1949 saw the first experts to call this phenomenon "transsexualism," and such individuals are called "transvestites." Transsexuals". A typical example is Ha Ri Soo, known in South Korea as the "Adam who became Eve," who has XY sex chromosomes and is clearly male. But he says he never thought of himself as a man, and decided to have sex reassignment surgery when he was a sophomore in high school.
So what is gender reassignment surgery? Its English name is Gender-change Surgery, GCS for short, is to male and female sex organ removal and reconstruction as the main content, supplemented by certain other treatment methods of plastic surgery. The main cases in which gender-change surgery is performed are transsexuals, and its main purpose is to allow transsexuals to realize their dream of abandoning their original anatomical sex to become the opposite sex through organ alterations.In 1969 Green and Money first demonstrated the scientific validity and necessity of surgical treatment of transsexuals and published the book Transsexualism and Gender-Reassignment Surgery.In 1931 there was the first international case of The first international sex reassignment surgery occurred in 1931, causing a furor at the time.
The first publicly reported case of gender reassignment surgery in China was performed in the late 1980s at Changzheng Hospital in Shanghai by Professor He Qinglian of the Second Military Medical University. In recent years, there has been a marked increase in the number of people requesting gender reassignment surgeries, with some sources claiming that there have been roughly a thousand of them in China.
Conditions and industry regulations for gender reassignment surgery
China's legislation on gender reassignment surgery should take into account foreign legislation and combine it with the country's specific national conditions to develop specific conditions for applying for and carrying out gender reassignment surgery:
Firstly, medical institutions that carry out gender reassignment surgeries must be licensed by the administrative department of health. First, medical institutions that perform sex reassignment surgery must be licensed by the competent health administrative department, and medical institutions that are not licensed are prohibited from performing sex reassignment surgery on persons. For the national designated surgical institutions, a strict audit and licensing system should be adopted, the national health department should be based on the hospital's talent, technology and equipment experts in the country to select a number of hospitals as a designated hospital to carry out sex reassignment surgery.
Second, clear criteria for determining transsexualism. The main basis for determining whether a patient is a transsexual is the clinical manifestations. China to determine this standard can refer to the American Psychiatric Association in 1980 published the third edition of the Diagnostic and Statistical Manual of Mental Disorders diagnostic criteria.
Third, the specific relative must have a written expression of consent, signed before the operation is carried out to confirm that the next of kin has no objection.
Fourthly, there must be a relevant certificate, such as a certificate from a psychiatric hospital to rule out mental illness, a certificate from the public security department, or an endorsement from the public security department.
Fifth, the person who performs the sex reassignment surgery should apply to the medical institution for an appearance, and the medical institution that performs the sex reassignment surgery will make a decision to approve or disapprove the surgery after reviewing it according to the law and medical operation procedures.
Finally, the relevant medical institution and health authorities should register the person applying for sex reassignment surgery and establish a specialized medical file for verification.
Fourth, sex reassignment surgery caused by the relevant legal issues
At present, China's sex reassignment surgery to regulate the rights and interests of transgender legislation is in a state of absence, the legislature, such as the attitude of silence. Transgender surgery in China is in a legal limbo or on the fringe.
(a) whether sex reassignment surgery constitutes intentional injury and other crimes or whether it constitutes a crime, in the field of criminal law has led to a heated discussion
Han Youyi, a doctor of law at Peking University, believes that the implementation of sex reassignment surgery doctors are suspected of committing a crime, Han Youyi, said: "the right to health and the right to life is a citizen's basic rights, and shall not be infringed upon arbitrarily, but the citizen to a certain degree can be disposed of their own right to health, such as allowing others to beat up the body, the right to life. The right to health, such as allowing others to punch themselves, which is not illegal. However, this kind of disposition is not unlimited . Although China's criminal law does not directly stipulate, but from the judicial practice and the spirit of the legislation can be introduced, resulting in serious injury and death results, the victim's permission does not exempt the other party's criminal responsibility. While Chen Xingliang, a professor at Peking University Law School, believes that sex reassignment surgery is a medical act and the doctor has no intent to harm. "Doctors do not constitute a crime when they do sex reassignment surgery," he said, "Doctors do sex reassignment surgery can be understood as a medical act, while constituting a crime must simultaneously meet the subjective and objective four elements. Doctors do sex reassignment surgery, thinking about how to reduce the patient's pain, at least psychological pain, so that they live a better and happier life. And there is no criminal intent to harm them, so it lacks the subjective aspect of the crime and cannot be recognized as a crime."
Ruan Qilin, a professor at the China University of Political Science and Law, takes a more eclectic approach. He believes that whether it constitutes a crime depends on the purpose of the sex change, and that one size does not fit all. If the patient of sex reassignment surgery is because there is a disease that is the heart of the disease other methods can not be cured can only take the way of sex reassignment in order to lift the pain, at this time sex reassignment surgery has a positive therapeutic significance, belongs to the medical behavior. However, if the sex reassignment surgery is due to other reasons than disease and asked to do sex reassignment surgery, then sex reassignment surgery does not have any therapeutic significance, does not belong to the medical behavior.
In response to the above tripartite views, I agree with Prof. Ruan Qilin of the China University of Political Science and Law. The subjective aspect of the content is whether the key elements of the crime, if the implementation of sex reassignment surgery is to avoid detection and other illegal purposes, it should be recognized as a criminal act, and at the same time should be distinguished between the doctor's knowledge or not, if the doctor knows that the parties to the sex reassignment surgery is out of its illegal purpose and give help, the doctor should be convicted and punished according to the *** with the crime and bear the corresponding criminal responsibility; if the doctor is unaware of the If the doctor commits the act without knowledge and not with the intention of causing harm, the act does not constitute a crime. At the same time, the attitude of the transsexual himself or herself should also be taken into consideration within the scope of whether or not it constitutes a crime. If the transgender person is forced or coerced to carry out sex reassignment surgery, and after the operation can not adapt to social life or can not accept this reality, the relevant person in charge and the medical institution should bear criminal responsibility and corresponding civil compensation.
(2) After the implementation of gender reassignment surgery, the change of household registration of transgender people
China's legislation on transgender people is in a state of blankness, transgender people to change the gender of the household registration in 2008 before the introduction of the corresponding provisions, a lot of transgender people seem to be in a vacuum after the operation of the state of genderlessness.
Henan Province is the first province to clarify the change of hukou after sex reassignment, in order to crack the dilemma faced by transgender people, the Public Security Bureau of Jiangxi Province has also issued a special document on the implementation of sex reassignment surgery after the change of hukou to clarify the formalities: the implementation of sex reassignment surgery, the citizens applying for a change in hukou registration of the gender of the project should be provided with the domestic third-level hospitals to identify the gender of the certificate and notary public issued by the notarial department of the notary public or the judicial identification department issued certificate. The certificate issued by the notary public or judicial appraisal department shall be approved by the competent department of the public security organs at the prefecture (municipal) level, and the gender change procedures shall be carried out by the public security police station, and after the gender item has been changed, the citizen identity card number shall be compiled anew. Which has received a resident's identity card, the public security organs will be canceled, and re-apply for a resident's identity card. This batch of documents means that Jiangxi Province has become the second province after Henan Province to clarify the deformation can be changed after the household registration. Shandong Province Public Security Bureau security police headquarters also received a similar approval above, and other provinces are also one after another to carry out the work of hukou easy sex.
But at the same time, this may also provide an opportunity for some illegal behavior, and legislation on the scale of household registration management is urgently needed to regulate household registration on a national scale.
(C) sex reassignment surgery caused by the marriage and family problems
The Ministry of Civil Affairs of China's current face of the transgender marriage problem has made a clear answer, transgender marriage registration is legal and valid, the dissolution of the marriage with reference to the agreement on the treatment of divorce. The relevant person in charge of the Ministry of Civil Affairs pointed out in an exclusive interview with Xinhua News Agency: Although sex reassignment surgery has gradually been understood and recognized, but the laws and regulations relating to marriage and other aspects of this particular group of people have not yet made specific provisions. This response is therefore applicable to addressing all similar situations. The director also emphasized that transgender people, like other citizens in China, have the right to freely register their marriages with people of the opposite sex in accordance with the Marriage Law, and that there are no legal obstacles to this. However, although transgender people have the right and freedom to marry, but transgender people requesting marriage should first fulfill the obligation to inform the other party so that the other party to know that they are transgender, so that the other party to make the choice of whether or not to marry, the other party in the case of informing the other party still agreed to marry with the transgender people, it is considered to give up his own and transgender people's right to procreate.
In the present situation where there is a blind spot in the legislation, it is impractical to demand a complete legislative system, and it is an urgent task to regulate and guide the legal issues of sex reassignment surgery more swiftly, purposefully, and purposely through the administrative regulations of the Ministry of Health of the State, but it can only be an expedient measure, and a more complete legislation needs to be established urgently. In the words of Dr. Chen Huanran, "With the development of the times and the progress of social civilization and science, we believe that one day human beings will have a clearer understanding of the nature of transsexualism, and thus it is possible to overcome this disease fundamentally, so that transsexual patients will no longer have to endure the pain of spiritual torment from now on, and will also have the opportunity to enjoy the same beauty, love, and happiness as the healthy people do. The first step is to make sure that you can enjoy the beauty, love, and happiness of your life.
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